State v. Hickok

90 Wis. 161 | Wis. | 1895

Cassoday, J.

The defendant was convicted of having sold intoxicating liquors without a license, in violation of S. & B. Ann. Stats, sec. 1550. No question is made but that the justice of the peace residing in Lancaster had power and jurisdiction to hear, try, and determine the offense charged if it arose anywhere in Grant county. R. S. sec. 4739; State ex rel. Dunn v. Bilder, ante, p. 10. The complaint does charge that the offense was committed in Grant county.

It is contended, however, that the complaint is fatally defective because it fails to allege in what particular town, village, or city in that county the offense was committed. The judge of the circuit court, deeming the question “ so important or so doubtful as to require the decision of” this court, has certified the question for adjudication under the statute (R. S. sec. 4721). The complaint contains everything which the excise law requires such a complaint to contain. S. & B. Ann. Stats, sec. 1551. It also contains everything required in the prescribed form for criminal complaints in justices’ courts. R. S. secs. 4740, 4741. These sections require the complaint to be made, and the warrant to issue thereon, whenever it is made to appear to the justice, in the manner prescribed, that such an offense as the justice has jurisdiction of has been committed within the county. The complaint seems to contain everything required by the statutes for an information. R. S. secs. 4657-4659. The most important requirements are that it shall appear from the complaint o.r information that the offense was committed within the jurisdiction of the court, and that the offense charged is set forth with such a degree of certainty that the court may pronounce judgment, upon a conviction, according to the right of the case. Ibid. The offense having been created by statute, it would seem to be sufficient for the complaint to describe it substantially in the words of the statute. R. S. sec. 4669; Hintz v. State, 58 Wis. 493. The count of the information held good in that case was just as objectionable, as to the question here considered, as the complaint in the case at bar. See State v. Boncher, 59 Wis. 477; Sires v. State, 73 Wis. 255; State v. S. A. L. 77 Wis. 467. In Boldt v. State, 72 Wis. 7, the complaint was substantially the same as the complaint in the case at bar, and for the same offense, and it was expressly held to be sufficient. True, the prosecution on the trial was bound to prove the sale of liquor, and such proof undoubtedly revealed the location and town where the sale was made. And so the prosecution was bound to show, at least by presumptive evidence, that the defendant had made such sale in such town without a license. Hepler v. State, 58 Wis. 46. Nevertheless, it was a mere matter of evidence, and the proof of a negative at that.’ If the defendant had a license to sell at the place so revealed by the evidence, then he had in his possession conclusive evidence of such license, and that was available as a perfect defense. Since the only defense available, in case he had made such sale, was the license in his own possession, there would seem to be no danger of the defendant’s being misled, to his injury, by the failure of the complaint to specifically name the place in which the sale took place.

Eor the reasons given the first and second questions certified are, respectively, answered in the affirmative.

It does not appear from the record in what particular place, nor in what particular town, in Grant county, the proof shows that the offense was committed for which the defendant was convicted. It is alleged in his special plea that he had a license to sell at a particular place in the village of Bagley, in the town of Wyalusing, and so we assume the sale was not made at that particular place. The special plea also alleges that at the time in question the sale of intoxicating liquors had been prohibited in the several towns of Patch Grove, Bloomington and Montford, in Grant county, under the provisions of Laws of 1889, ch. 521 (S. & B. Ann. Stats. secs. 1565a-1565f). But it is not alleged on the part of the state nor on the part of the defendant, nor does it appear anywhere in the record, that the sale for which the defendant was convicted took place in either of those towns in which such sale was so prohibited. This being so, the third question certified by the trial judge propounds a question of law which does not appear to have arisen in this case, and hence is not properly a question to be so certified, under the statute. E. S. sec. 4721. Under that section, we are only to determine questions which have actually arisen in the trial of a cause, and not abstract questions which may possibly.arise in the future.

For the reasons given, we decline to answer the third question certified.

By the Oowrt. — - Ordered accordingly.